March 17, 2020 Update: Shelter-in-place directive makes this post, at least partially, outdated. However, essential businesses should continue to take adequate measures to ensure they do not aide in transmission of the COVID-19 virus as further explained in this post.
Bars, pubs, and night-clubs are fertile grounds for spreading the COVID-19, coronavirus. Particularly, in such establishments, the normal established rules of “personal space” are loosely adhered to. For example, bar stools are placed next to each other such that a patron has two or more people within arm’s length. Furthermore, these establishments have a high turnover, which means a patron sitting at the bar is likely to encounter many more (inebriated) people (within arms length) who could cough, sneeze, spit, etc., and inadvertently transmit COVID-19. Also, it is important to note that there is no reasonable expectation of personal space extending to an arm’s length on dance floor in nightclubs and one can potentially come in contact with 100s of people within arms length in such settings.
I would also like to remind you that this is not a hypothetical based on paranoia, but rather actual events that are known/suspected to have spread COVID-19 to the masses around the world, including in the US. See Scottsdale nightclub employee may have exposed others to COVID-19 coronavirus; see also Queensland records two new coronavirus cases after revelations patient visited nightclub; and After one infected 16 at Berlin nightclub, coronavirus fears grow.
As of the writing this post (for updates please click here), the County of Santa Clara has issued a directive ordering suspension of mass gatherings in all establishments over 100 people. Furthermore, gathering between 35-100 people are permitted only when it is necessary for “essential societal functions.” I should note, it is clear that normal operations of bar and restaurants are not necessary for essential societal functions. Therefore, the County has asked all bars and restaurants to close, which is in effect as of the writing of this post.
However, in situations where a business has to gather between 35-100 people, necessary for essential societal functions, the County reminds businesses that it is their responsibility to:
Stop anyone who is sick with fever or respiratory symptoms from attending.
Ensure that those who are at higher risk for serious illness do not attend.
Provide people enough physical space so that they can stay more than arm’s length apart from others.
Ensure that there are adequate supplies for hand washing including soap, paper towels, and waste receptacles and urge attendees to wash their hands often with soap and water for at least 20 seconds. If soap and water are not available, alcohol-based hand sanitizer can be used.
Direct attendees to:
- Avoid close contact with other people.
- Avoid touching their eyes, nose, and mouth.
- Cover their cough or sneeze with a tissue – if available – or into their elbow.
Clean surfaces with disinfecting wipes or other standard cleaners before, during, and after the event.
See Guidance for Mass Gatherings, SANTA CLARA COUNTY PUBLIC HEALTH, March 13, 2020.
Following County Guidelines is Not Enough
Nonetheless, regardless of the County’s guidelines, it should be noted that the risk cannot be mitigated by limiting the number of people in such establishments, since the setting is inherently one which invites people to come in close contact with each other. Further, the County already agrees that asymptomatic spread of COVID -19 is of concern. See https://www.sccgov.org/sites/phd/news/Pages/order-health-officer-03092020.aspx (“It is important that all individuals, including those who are not at higher risk for severe illness, follow this guidance. Even individuals who are not a higher risk can inadvertently transmit the virus to vulnerable people.”)
This means that, regardless of the gathering size (and regardless of the County guidelines), if a patron at your establishment contracts the COVID-19 coronavirus, you as a business can be liable for your failure to:
1. Ask older people and those with chronic illnesses to leave your establishment;
2. Stop serving anyone who may appear to be sick;
3. Your failure to ensure people do not come in contact or in proximity with each other;
4. Your failure to provide adequate sanitizing supplies in the bathroom and around the establishment;
5. Your failure to warn attendees that their presence in your establishment may subject them to contracting the COVID-19 coronavirus; and
6. Your failure to frequently clean, including when patrons leave, all surfaces that the patron may have touched and around them with a disinfectant that kills viruses.
If you have further concerns, please contact your legal counsel for guidance.